### ATTORNEY GENERAL OFTEXAS GREG ABBOTT

June 9,2003

The Honorable Bruce Isaacks Denton County Criminal District Attorney 1450 East McKinney, Suite 3100 P.O. Box 2850 Denton, Texas 76202 Opinion No. GA-008 1 Re: Budget amendment process in Denton County (RQ-0013-GA)

Dear Mr. Isaacks: You present two related questions about the process ofamending the Denton County budget.’ First, you ask whether it is necessary, in amending an original county budget to create “a new salaried position that does not result in anew line item,” for the commissioners court to act under the “emergency expenditure” provision ofsection 111.070(b) ofthe Local Government Code, which you say governs Denton County.* Second, you ask whether, having created aposition inthe sheriffs department and identified the funding forthat position, the Denton County commissioners court has aministerial duty to fund the position and approve the appointment. As we understand the situation giving rise to your questions, inMay 2002, upon the request ofthe Denton County sheriff, the commissioners court approved the creation ofahomeland security coordinator position in the sheriffs office. At this time, the commissioners court determined that funding for the position would come from abudget line dedicated to unappropriated contingencies. In June 2002, the sheriff submitted aproposed order to the commissioners court for approval ofhis appointment of acandidate tothe position. The commissioners court, however, declined to actupon the proposed order. Inpart, it appears the commissioners court declined because of aconcern that the prior budget amendment had been inconsistent with the requirements of section 111.070 ofthe Local Government Code. Section 111.070 reads: (a) The commissioners court may spend county funds only in strict compliance with the budget, except asprovided by this section.

‘Letter from Honorable Bruce Isaacks, Denton County Criminal District Attorney, to Honorable Greg Abbott, Texas Attorney General (Jan. 17, 2003) (on file with Opinion Committee) [hereinafter Request Letter].

*Letter from Honorable Bruce Isaacks, Denton County Criminal District Attorney, to Honorable John Comyn, Texas Attorney General, at 1(June 26,2002) (on file with Opinion Committee) (attached toRequest Letter) [hereinafter Letter of June 26,2002-j.The Honorable Bruce Isaacks - Page 2 (GA-008 1)

(b) The commissioners court may authorize an emergency expenditure as an amendment to the original budget only in acase of grave public necessity to meet an unusual and unforeseen condition that could not have been included in the original budget through the use ofreasonably diligent thought and attention. Ifthe court amends the original budget to meet an emergency, the court shall file acopy of its order amending the budget with the county clerk and the clerk shall attach the copy to the original budget. (c) The commissioners court by order may amend the budget to transfer an amount budgeted for one item to another budgeted item without authorizing an emergency expenditure. TEX.Lot. GOV’T CODEANN.4 111.070 (Vernon 1999) (emphasis added). By its terms, subsection (c) permits the reallocation of budgeted funds from one item to another without the requirements ofthe emergency expenditure provisions of subsection (b). As the El Paso court of appeals noted in Hooten v. Enriquez, 863 S.W.2d 522 (Tex. App.-El Paso 1993, no writ), acommissioners court has “general authority to effect the transfer of surplus funds” from one account to another. Hooten, 863 S.W.2d at 529. When acommissioners court simply transfers these amounts, under the language ofsubsection (c),itisnot required to find agrave public necessity that was reasonably unforeseeable in the original budget process. As we understand it,particular salaries such asthat ofthe homeland security coordinator are not line items in Denton County’s budget, but are rather “slots” within a line item. Letter of June 26,2002, supra note 2, at2. Further, when the commissioners court created the position inquestion, itordered “that the funding was to come from the Unappropriated Contingency line item, but did not specify an amount for said funding.” Id. Such an amendment, given that it contemplated only a transfer ofbudgeted funds, falls within section 111.070(c). The appointment of anew employee by a county officer, such as a sheriff, is governed by subchapter A ofchapter 151ofthe Local Government Code. Section 151.OOlcommands an officer “who requires the services of deputies, assistants, orclerks” to apply tothe commissioners court for such appointment in a sworn application detailing the number of employees required, the titles of their proposed positions, and the proposed salaries. TEX.Lot. GOV’T CODEANN. Ej151 .OOl (Vernon 1999). Such an appointment isthen within the authority ofthe commissioners court, which “shall determine the number of employees that may be appointed and shall authorize their appointment

.” Id. 8 151.002. After the commissioners court has issued such an order, “the officer applying for the employees may appoint them.” Id. 5 151.003. At that point, neither the commissioners court nor any member thereof may “attempt to influence the appointment of any person.” Id. 5 151.004. The courts and this office have frequently had occasion to analyze the relative authority of commissioners courts and sheriffs as independent constitutional officers with respect to theThe Honorable Bruce Isaacks - Page 3 (GA-008 1)

budgeting for and staffing of the sheriffs office. See Garcia v.Reeves County, 32 F.3rd 200 (5th Cir. 1994); Abbott v.Pollock, 946 S.W.2d 513 (Tex. App.-Austin 1997, writ denied); Comm ‘rsCt. of Shelby County v. Ross, 809 S.W.2d 754 (Tex. App.-Tyler 1991, no writ); Renken v. Harris County, 808 S.W.2d 222 (Tex. App.-Houston [14th Dist.] 1991, no writ); see also Tex. Att’y Gen. Op. No. JC-0214 (2000). The general division of authority is clear: “The commissioners court performs alegislative function when itcreates the budget for the county’s offices and departments. This budgetary power carries with itbroad discretion in making budgetary decisions.” Hooten, 863 S.W.2d at 528. On the other hand, Texas sheriffs have “virtually unbridled authority in choosing their personnel, restricted only by certain basic constitutional considerations.

...The commissioners court may limit the number of deputies authorized, but ithas no power over naming the individuals to be appointed.” Comm ‘rs Ct. ofShelby County, 809 S.W.2d at 756. As this office summarized the matter in Attorney General Opinion JC-02 14, “the principal power ofthe commissioners court with respect to other county officers like the sheriff is the power of the purse strings.” Tex. Att’y Gen. Op. No. JC-0214 (2000) at 2. A commissioners court has the authority to determine, in any budget year, the resources to be distributed to the sheriff. It may, accordingly, take adifferent view than does the sheriff about the necessity for aparticular staff position. Inthis case, had the commissioners court disagreed with the sheriff atthe time ofthe requested authorization for the homeland security coordinator position, the sheriff would have had little recourse, given that such a decision could be challenged only for abuse of discretion. “The district court’s authority extends only to enjoin illegal expenditures and to situations where the commissioners abuse their discretion. Ithas no authority to substitute itsown judgment for that of these elected officials as to the particular expenditures that should be made.” Weber v. City ofSachse, 591 S.W.2d 563,566 (Tex. App.-Dallas 1979, writ dism’d). Similarly, in another budget year, the commissioners court might revisit the issue ofthe position’s necessity. But having authorized the appointment, their control over the appointment forthe budget year inquestion is at an end. Pursuant to section 151.003 ofthe Local Government Code, the power of appointment thereupon belongs entirely to the sheriff. Any further interference with that power of appointment would invade that “sphere of authority, which is delegated to [the sheriffJ by the Constitution and laws, within which another officer may not interfere or usurp.” Renken, 808 S.W.2d at226; accord Abbott, 946 S.W.2d at 517; Tex. Att’y Gen. Op. No. JC-0214 (2000) at 3, 5.The Honorable Bruce Isaacks - Page 4 (GA-008 1)

SUMMARY A commissioners court that amends its budget in midyear to authorize anew position in the sheriffs office bytransferring surplus funds from one budget item to another need not authorize an emergency expenditure, but may proceed under the terms of section 111.070(c) ofthe Local Government Code. Having authorized such an appointment pursuant to sections 151.OOl and 151.002 of the Local Government Code, acommissioners court has ceded authority over that position to the appointing officer for the remainder of the budget year in question. Very truly yours,

Attom@neral of Texas

BARRY R. MCBEE First Assistant Attorney General DON R. WILLETT Deputy Attorney General for Legal Counsel NANCY S. FULLER Chair, Opinion Committee James E. Tourtelott Assistant Attorney General, Opinion Committee